153 Ky. 195 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming in Part and Reversing in Part.
These two cases have been consolidated and will be considered in one opinion.
Dr. W. E. Bowling and his wife, Eliza J. Bowling, lived in Logan County, near Adairville. Dr. Bowling owned a large farm in that county. He and his wife had no children. A few years before Dr. Bowling’s death, he and his wife took into their home a young man by the name of Albert M. Angel. Later on there came to live in the family a niece of Mrs. Bowling. Albert Angel and the niece were subsequently married. Dr. Bowling died in the year 1878. His will, which was duly probated in the Logan county court, is as follows:
“In the name of God, Amen.
“I, William E. Bowling, of the county of Logan, and State of Kentucky, being of sound mind and memory, and considering the uncertainty of this frail and transitory*198 life, do therefore make, ordain, publish and decree this to be my last Will and Testament: That is to say, First, after all my lawful debts and funeral expenses are paid and discharged, the residue of my estate, To my dearly beloved wife, who has been the partner of my joys and sorrows during the long and weary years of my enfeebled health, has given her constant time and efforts to the alleviation of my sufferings, and always manifesting toward me that divine love which springs from a pure heart and a sympathetic nature, thus proving herself one of (Father says the most) the most devoted and affectionate wives under all circumstances, I give and bequeath all my Estate, real personal and mixed, of which I shall die possessed, or to which I may be entitled, But at her death if there should be anything left after her funeral expenses are paid, and a mice substantial monument erected to her memory I wish half that is left to be given equally to my Brothers or their heirs, The remaining half to be disposed of as she may see or think proper. Likewise I make, constitute, and appoint, My said wife Eliza Jane Bowling to be sole Executrix of this my last will and testament, hereby revoking all former wills by me made.
“No Bond or Security of any kind or description to be required of her. I wish her to be free and unincumbered in the managenment of the property I have willed to her.
“My Desire and wish is (at any time she may need assistance), for her to get My Brothers, R. C. and J. M. Bowling to give her all that may be necessary, they receiving fair and reasonable compensation for their services. As witness whereof, I have hereunto subscribed my name and affixed my seal, The 26th October in the year of Our Lord one thousand eight hundred and seventy-seven (1877).”
Dr. Bowling left three brothers, R. C. Bowling, J. M. Bowling and Henry Bowling. On June 17, 1878, Mrs. Bowling conveyed to R. C. Bowling and J. M. Bowling, two of Dr. Bowling’s brothers, a tract of land supposed to contain about 100 acres, but which it afterwards developed contained about 140 acres. The conveyance was made “in consideration that the said R. C. and J. M. Bowling have released and relinquished to her all their rights, title and interest in & to the estate of their deceased brother, Dr. "W. E. Bowling.”
On September 8, 1892, W. S. Gambill, as administrator of Mrs. Bowling, brought suit against A. M. Angel, his wife, Lizzie Angel, and their two infant children, Willie Angel and Oma Angel, infants under 14 years of age, Helen Wood and her husband, B. S. Wood, J. M. Bowling, George S. Bowling, the Peoples Bank and Bank of Adairville, to settle the estate of Mrs. Bowling. It was charged in the petition that the decedent left debts in excess of $3,000, and that the proceeds of the sale of her personal property were insufficient to pay the debts. Plaintiff asked that the case be referred to the master commissioner to hear and report on claims against the estate, and that enough of the real estate belonging to the decedent be sold to pay her debts. Summons was served on A. M. Angel and his wife in person and on the infant defendants, Willie Angel and Oma Angel, the only children they then had, by delivering a copy of the summons to their father, Albert M. Angel, who had charge of them. W. W. Bell, a regular practicing attorney, was appointed guardian ad litem for the infant defendants. Later on, Helen Wood and her husband, B. S. Wood, George S. Bowling and J. M. Bowling, Helen Wood, George S. Bowling and J. M. Bowling being the only children of Dr. Bowling’s deceased brother, Henry Bowling, filed an answer, counterclaim and cross-petition, wherein they denied certain allegations of the -original petition with reference to their interest in the lands in controversy under and by virtue of Dr. Bowling’s will, asserted certain claims under and by virtue of said will, and asked for a construction of the will, and for all special and general relief. Summons was issued on the cross-petition against the infant defendants, Oma and Willie Angel, and served' on them by delivering a copy thereof to their father, A. M. Angel, who had charge of them. The administrator afterwards filed a reply and answer to the counterclaim of Helen Wood and the Bow-lings, wherein he united with them in asking the court to construe the will of Dr. Bowling and to determine the respective interests of the parties to the action in the
It developed from the report of the master commissioner that Mrs. Bowling left debts amounting to something like $3,000. The court thereafter directed a sale of enough land to pay the debts and costs. Eighty-four and one-half acres of the land was sold, and M. L. Fugate became the purchaser.
During the progress of the proceedings, a compromise agreement was signed by Albert Angel and wife and Ben S. Wood, the husband of Helen Wood, on her behalf and on behalf of the other heirs of Henry Bowling, by which it was agreed that there should be laid off to Helen Wood and her brothers about 60 acres of the land in controversy, and an amended and supplemental answer and counterclaim was filed by Helen Wood and others, setting up the compromise agreement and asking that it be confirmed by the court. The Angels pleaded that the infants were not bound by this agreement. Later on, Helen Wood and the other heirs of Henry C. Bowling, deceased, filed an amended answer and cross-petition asking that if the compromise agreement be not confirmed, that all the remainder of the land be sold on the ground that it
The first question to be decided is: Did the chancellor properly construe the will of Dr. W. E. Bowling? The rule is that where an estate is given in fee, a devise .over of what is left or not disposed of by the first taker is void. Where, however, a life estate only is devised, with power of disposition, a devise over of that part of the estate which is not disposed of is valid. Irvin v. Putnam, 89 S. W., 581; Becker v. Roth, 132 Ky., 429. The pivotal question in every case is: Did the testator devise to the first taker a fee or a life estate, with power of disposition? In Moore v. Webb, 2 B. Mon., 282, the court said:
“The unqualified right of disposition given to the widow during her life, as well as at her death, imports, in our judgment, a devise of the absolute title to her in fee, and not merely a life estate with the power of appointment at her death.”
In the will under consideration the devise to Mrs. Bowling and the limitation over occur in the same sentence. Had she been given the power to dispose of the devised estate both during her lifetime and at her death, we would necessarily have to hold that she took a fee; but such is not the case. The will expressly limits her right to dispose of the property by will. She is given' power to dispose of only one-half. By giving her full
The next question is: Is the judgment proper in decreeing that Helen Wood and her brothers were entitled to 40-154 of what was left, and that the Angels were entitled to only 114-154? In this connection it is insisted that Mrs. Bowling had no right to convey to R. C. Bowling and J. M. Bowling the 140 acres of land which she did convey to them, and thus prejudice the rights of Helen Wood and the other children of the deceased brother, Henry Bowling. It is therefore argued that for the purpose of determining .the interest of Helen Wood and the other children of Henry Bowling in the property remaining at Mrs. Bowling’s death, the land conveyed to R. C. and J. M. Bowling should be brought into hotchpotch, and the interest of Helen Wood and others determined on that basis. The circuit court, however, held that Mrs. Bowling had the right to dispose of the whole of the estate during her lifetime. In this construction of the will we concur. It matters not, therefore, what may have been her purpose in making the conveyance to the two Bowling brothers, she had the undoubted right to convey the land. Indeed, she could have sold it to them and disposed of the money, or she could have given it to them if she so desired. It cannot be said, then, that Henry Bowling’s children are entitled to any portion of
It is next insisted that as the original action was brought merely to settle Mrs. Bowling’s estate and sell sufficient land to pay her debts, it was improper to en-graft thereon the action to construe Dr. Bowling’s will and to adjudge therein the rights of the various claimants, and to direct a sale of the remainder of the land on the ground of indivisibility. It is further insisted that the infants were not properly before the court in the proceeding to sell the remainder of the land. In bringing the settlement suit the administrator had to make the Angels and their children and Mrs. Wood and her brothers parties defendant in order to determine what their rights under the will were, and in order to pass title to the purchaser of any land that it was necessary to sell in order to pay Mrs. Bowling’s debts. In this proceeding the infants were properly served with process, and defense made for them by a guardian ad litem. The same
Complaint is made of the fact that certain attorneys fees were improperly allowed in the action. The propriety of the court’s action in this respect cannot be reviewed, for the attorneys are not parties to this appeal.
About the year 1895, M. L. Fugate was appointed trustee of Albert M. Angel and Lizzie Angel, his wife, and of their infant children. He accepted the appointment and executed bond for the faithful performance of his duties. On April 29, 1909, Lizzie J. Angel and M. L. Fugate, trustee, filed a petition in equity against E. H. Fugate and Lizzie J. Angel’s infant children, wherein plaintiffs sought authority from the chancellor to apply the sum of $458.51, in the hands of M. L. Fugate, trustee, to the payment of a mortgage for $1,000 executed by Albert M. Angel and his wife to E. H. Fugate on a tract of 100 acres of land in which Albert M. Angel and his wife had a life estate, with remainder to their children. The court granted the relief sought and directed the trustee to pay out the money. The guardian ad litem prosecuted an appeal to this court. The case was reversed. Some time thereafter the case was re-docketed, and the Angels asked for a rule against M. L. Fugate requiring him to settle his accounts as trustee. They also filed a petition attacking the mortgage to E. H. Fugate on the ground of no consideration, and on the further ground of overpayment. It appears that some years prior to the filing of this action Lizzie Angel and her husband, A. M. Angel, filed an action in the Logan Circuit Court against M. L. Fugate, their trustee, wherein they asked permission to invest in a tract of land then belonging to Ezra Offutt, the money which Fugate then held as such trustee. There was a dispute between the Angels and Fugate as to the amount of the trust fund. The case was referred to the master commissioner to ascertain and report the amount of money in the hands of Fugate as trustee. The master commissioner filed his report, and this report was in effect confirmed by the chancellor. In response to the rule against Fugate in this action he pleaded the aforesaid settlement in bar of any recovery prior to the date of the settlement, and set up the amount remaining in his hands after the investment in the farm of 100 acres, and stated his willingness to pay interest thereon at the
It would extend this opinion to too great length to consider in detail the various items going to make up the amount of money furnished by the Fugates on the faith of the mortgage. The evidence leaves no doubt that the $1,000 was not furnished to the Angels at the time of the execution of the mortgage. Whatever money was furnished was simply paid out by the Fugates to discharge debts owing by the Angels. After carefully considering the evidence, we see no reason to change the finding of the chancellor either as to the amount of money so paid-out or the amount of the payments made on the mortgage. It is earnestly insisted by the Fugates that no recovery should be had by Mrs. Angel for the reason that she and her husband not only executed the mortgage, but recognized its validity for several years. In addition to this, Mrs. Angel sought in this action to have the remainder of the trust fund in the hands of M. L. Fugate, trustee, applied to the payment of the mortgage debt. Furthermore, upon the return of this case she actually paid the balance due on the mortgage. Her conduct in this respect
We agree with the chancellor that the settlement made by M. L. Fugate as trustee in the action of A. M. Angel, &c. v. M. L. Fugate is conclusive. In this action the, chancellor took the amount of money then in his handsi and charged him with it, together with interest thereon up to the time of the judgment. Complaint is made of the fact that M. L. Fugate was not allowed credit for the various sums paid out by him by virtue of the judgment which was afterwards reversed on appeal. The judgment was not superseded.' Having paid out the money under and by virtue of said judgment, the judgment protects hi-m to the extent of the costs paid, but n<5t to the extent of the sum paid E. H. Fugate, because that was in effect a payment to himself. On a return of the case he will be given credit for the amount of the costs paid.
The judgment in the case of A. M. Angel’s Administratrix, &c. v. M. L. Fugate is affirmed on the original appeal and reversed on the cross-appeal, with directions to allow M. L. Fugate, trustee, , credit for the amount of costs paid out by M. L. Fugate, trustee, pursuant to the judgment of October 12,1909, in the action of Lizzie J. Angel, &c. v. R. H. Fugate, &c.